PURSUIT OF JUSTICE
‘Making a Murderer: Part 2’ Attorney Kathleen Zellner on the Murder Theory That Could Free Steven Avery
The star of the second season of Netflix’s true-crime phenomenon opens up about who she really believes killed Teresa Halbach—and it’s not Steven Avery or Brendan Dassey.
There’s no true-crime television series quite as gripping as Netflix’s Making a Murderer, which details the plight of Manitowoc County, Wisconsin’s Steven Avery and Brendan Dassey, both of whom were convicted and sentenced to life in prison in 2007 for the Oct. 31, 2005, murder of Teresa Halbach—this despite the fact that there’s considerable reason to believe neither had anything to do with the crime.
And in the second season of Laura Ricciardi and Moira Demos’ non-fiction phenomenon, there’s no more compelling figure than attorney Kathleen Zellner, famed for obtaining the exonerations of twenty wrongly convicted men, who takes Avery on as a client and promptly begins dismantling, piece by piece, the evidence used by the state to put him behind bars. Sharp, fearsome and relentlessly determined to discover the truth—no matter whether it proves Avery’s innocence or guilt—she’s a charismatic center of attention, and her legal efforts singlehandedly make the show’s follow-up run must-see TV.
Over the course of ten new episodes, Zellner provides a crash-course in forensic science, employing experts and carrying out tests to undermine the prosecution’s various claims. In doing so, she not only persuasively argues that Avery and Dassey had nothing to do with the slaying, but also forwards a convincing theory about who really killed Halbach: Brendan’s brother Bobby (a key witness for the state) and his stepfather Scott Tadych. It’s a bombshell that provides hope in a story that’s had little of it to date—and it’s one that Zellner is confident will eventually lead to justice for Steven, who remains behind bars.
With Making a Murderer’s second season now available, we spoke with the determined Zellner about her hypothesis regarding Bobby and Scott, the additional key evidence she wished had made it into the show, and where the case goes from here.
Have you watched the series yet?
Yes, I’ve watched all of it. When you’re actually watching yourself in parts of it, you in some ways probably focus on that. But you are also trying to focus on the story. I had never seen any of it during filming. I never saw a single frame. Even though they were asking me a lot of questions in interviews, they were very careful as they were filming never to indicate how they were processing anything I was saying, or anything I was doing in the scientific experiments, or interactions with my experts. So all of that was very interesting to me, to sit and watch how they put it together. In many ways, I was looking at it just like an initial viewer would, because I didn’t have any idea how they were going to piece it together.
Was there anything that didn’t make the final cut that you wish had?
Actually, there were things that were not in it, and I think it was just because of having to edit. There were additional experiments that we had done. The template that I had set up is the same as what I do with all my cases: I analyze and distill down the components of the prosecution’s case—that’s what you do on post-conviction. Your goal is to go back to that evidence and try to dispute it or show that it was false, or that there was no scientific basis for it.
So there were other things we had done. There was more information about the key [to Halbach’s vehicle]. We had reenacted the whole bookcase description—that the cops had supposedly seen the key lying on the floor in Steven’s trailer by the bookcase, that they had been manhandling the bookcase, and the key had ended up on the floor. Well, I wanted to get an identical bookcase, have the key and the lanyard, and see if it was even possible, in shaking the bookcase, first to have none of the items on top of the bookcase fall on the floor, and then to see if the key could land a foot west of the bookcase.
What we found was that it was impossible. The key never slipped out of the bookcase. The lanyard made it adhere to the surface of the bookcase. And I thought that was something that was really important to the jury, because the jury was asking for photographs of the bookcase. Neither side brought the bookcase in and asked Sergeant Colburn to come off the stand and show them how that had occurred, because he never would have been able to do it. That was something I would have liked to have seen included that wasn’t. But they have to edit it—you can’t just go on and on.
The second thing was the issue about the burn barrel—whether Teresa’s electronic devices had been burned in Steven’s burn barrel. A big part of that testimony was that a witness had claimed he was on the property and had actually seen the flames coming from Steven’s burn barrel, and he smelled plastic burning. So I wanted to get the identical electronic devices—and this is how tedious this work is—and burn them in a burn barrel. We went to the Avery property to see if any of us could smell plastic, because I didn’t believe it was true, what the witness was saying. And you couldn’t. That didn’t make it in. But again, they’re not presenting something in a courtroom; they’re presenting it for the public, and they have to make choices, and there was so much that they wanted to cover.
You lay out a convincing case against the forensic evidence used by the prosecution, as well as come up with a theory of your own—namely, that Brendan’s brother Bobby and stepfather Scott Tadych were likely behind the killing. Is that still your theory? And if so, is there anything new on that front?
In the series, they really got to all of that at the end of the tenth episode, because they were following my process. When I started the case, I started with nothing—no new evidence or anything. Then I gradually worked my way through the state’s case.
But no, my theory hasn’t changed, and this is what it comes down to. We realized that the 1996 blood vial had not been accessed by the police—the defense was just wrong about that theory. The packaging had been opened up in 2002 by The Innocence Project. The defense thought the packaging had been tampered with by the one officer, Lenk. It had not been. He never had possession of that blood tube. There was no missing blood from it; we got the exact quantities. All of those tubes have a hole in the top of them. Once I talked to experts that were dealing with EDTA tubes all the time, they said there was nothing that substantiated that theory.
One of the big problems with the defense was, they got locked into that theory, and then the state did the EDTA testing—which we considered redoing in the beginning, but experts said you’re going to end up with the same results, there’s just not EDTA in the tube. I always go back to the client and talk to them about the source of the blood. And in listening to Steven’s interviews, he’s always said the blood came from the night his finger broke open again, and he bled in his sink, and then he noticed the blood was missing. Sure enough, in his audio interviews back in ’05, he was telling the police that, and he told his attorneys that.
That changed the dynamic of the case, and who could be responsible for the murder—because I realized the police didn’t plant the blood. If the police had gotten in the trailer and seen blood in the sink, they’re not going to remove the blood, because they don’t know that that’s not Teresa’s blood. You would never do that. You would think, “Oh my god, there’s blood in the sink, it’s probably the victim’s.” You’re not going to scoop it up and go and drip it in the car.
So I realized the killer was the one who planted the blood. That then narrows the whole universe of suspects, because who knew that Steven’s finger had broken open again? There were witnesses that said the cut had existed for a couple of weeks. But his finger broke open again, and then it’s: who realized that he was bleeding and went back to his trailer to get a Band-Aid? Then we narrowed it again to just Bobby Dassey, because Brendan Dassey had gone with Steven. And the taillights that were in front of Steven’s trailer as they pulled out, and they ended up coming back, could only have been Bobby Dassey’s vehicle, because there was no one else who could have gotten that close to Steven’s trailer that quickly.
Then we started really looking at him, because he was the star witness for the state, and there have been other cases where the star witness ends up being the killer; the DNA subsequently proves they’re the killer. There’s a famous case in Nebraska where that happened. We started digging in, and discovered all of the stuff on the computer. We knew that he was very obsessed with her [Teresa Halbach], always watching her when she would come over. Then when the older brother gave me the affidavit saying Bobby told him that he saw her leave, we knew his trial testimony was false.
Given all of this, where is Steven’s case at the moment?
We prepared and filed the petition, and we filed an enormous amount of material—scientific evidence, our theory, all of that. We filed it at the trial court, and our experience across the country has been that trial courts do not reverse convictions; it happens at the higher court level. So we filed it knowing that the judge in this little place, Sheboygan, would summarily deny it, which means nothing. We’re in the process of appealing it to the appellate court, and that’s where most convictions are overturned across the country. Our appellate brief, which has all of these theories, all of this scientific evidence—the record’s 30,000 pages—is due on December 20.
Steven’s case, compared to Brendan’s, is just starting out, because Steven hasn’t had an attorney for years. Brendan has had Northwestern since 2010, and they did what we’re starting out to do—they went all through the state appellate system, and then when they lost, they jumped over to federal court, and took it all the way to the U.S. Supreme Court. They’re years ahead of us. In some of the things I’ve read, they’ve acted like, well, what does any of this mean, the case is over. No, the case has just started. The post-conviction has just started for him.
Brendan’s case seems to have hit a ceiling at the Supreme Court.
It has, totally.
Does that hurt Steven’s case?
Brendan’s case is over, in the sense that they raised all the issues on the confession being involuntary, and they went through the state system. They were, in 2011 or 2012, where we are now with Steven’s case. Then they took it over to the federal courts, and got a couple of positive opinions that got overturned. So the only possibility, I think, for him—he would have to come back to the lower court, in the state court of Wisconsin, with new scientific evidence to try to dispute the validity of the confession.
That’s why what we’ve developed may ultimately help him. But the problem in the post-conviction world is there are so many procedural hurdles. The first response of the court to the Northwestern attorneys would be, why didn’t you do this the first time? It’s a really difficult system to operate in.
The show suggests that an enormous problem here is that the state of Wisconsin will do anything to avoid admitting any wrongdoing. Does this always happen in post-conviction cases?
No, it doesn’t. If we had developed the same evidence in Steven’s case and we had been in Illinois, in a big urban area like Chicago where they have a conviction integrity unit, we would have been given an evidentiary hearing immediately. And quite frankly, if the prosecution had determined that there were enough flaws in the original trial, by agreement, we would have gotten a new trial.
Because there are no conviction integrity units in Wisconsin—none of the prosecution offices have them—we have just hit a brick wall. We got some cooperation initially with the scientific testing—we had an agreement with the state to do an evidentiary hearing. They thought it would last four weeks, and we were going to have it in the spring of 2018. And then the judge just arbitrarily dismissed our petition. Even though we had an agreement with the state, and we told her that, she still dismissed it.
So we’ve just hit a brick wall with cooperation, or any of them thinking at all that there could be something wrong with the case. It’s really unlike what we’ve experienced in other jurisdictions across the country. I haven’t had a single one of my twenty exonerations retried. They decided the case was flawed, my client was released, and that’s the end of it. But this one, we couldn’t even get in for an evidentiary hearing. And that’s going to be part of the appeal—that we should be granted an evidentiary hearing.
But yes, they’ve really thrown up a lot of roadblocks. Is that your impression?
Absolutely. It seems like the state has dug in its heels, to the point that they don’t even want to find out if mistakes were made, or an injustice has taken place. It’s galling.
I one-hundred-percent agree with you. It just seems very backwards to me compared to what a lot of jurisdictions are doing. People are recognizing across the country, in Illinois, in Texas—which has had tons of exonerations—New York, California. The longest one I’ve ever had pending was in Missouri, Ryan Ferguson’s case, but that was only four years. We got the hearing, the witnesses admitted they had committed perjury in that one, the trial judge denied release, and we had to get release from the appellate court.
But this! I swear, if I was granted a new trial, Steven Avery would not be convicted again. Because the defense attorneys didn’t even have the most basic experts. They didn’t have blood spatter. The point of the blood spatter was that Teresa Halbach was ambushed. She opened up the rear cargo door to get her camera out, and somebody hit her and knocked her on the ground and they’re beating her. So it wasn’t at all like what the state said. She was ambushed.
Then, also, with Steven’s blood—it was dripped selectively into the car. There are no fingerprints in the car. So how do you bleed from your finger, don’t leave fingerprints, and there’s twelve places in the car where there’s no blood—like the door handle, the steering wheel, the gearshift, the brake shift? If we got back into court, just with the blood spatter expert—because I’ve won cases just on that—we would win this. And then look at the bullet. The bullet didn’t go through anyone’s head.
How hopeful is Steven—and are you—that the case is going to move forward productively in the near future?
He’s extremely resilient, and he’s very hopeful because he knows that I’ve done this so many times before. That’s also what gives me hope, because we’ve hit walls before, and we’ve always persevered. And I think the publicity really helps. I think eventually, you can almost shame people into doing the right thing.
Just let us back in court. If this thing is so solid, let us do another trial. It should be simple for them to get a conviction if this is so solid. But to know that the state had fourteen experts, and Steven had one, and he just looked at photographs of the bones; he never looked at the bones. The case was just so deficient in the way it was presented. That’s why if they’d just let us back in court…but that’s what they’re fighting. They don’t want us back in court.
But trust me, I will outlast them. I have incredible endurance for these things! I’m not going away. I’m like a bad recurring dream.